Sotomayor slams prosecutor's racial remarks

2/25/13 6:38 PM EST

Supreme Court Justice Sonia Sotomayor delivered a sharp rebuke Monday to a federal prosecutor in Teas for asking a racially charged question of a trial defendant, taking the unusual step of issuing an opinion Monday on the high court’s refusal to hear a case.

Sotomayor joined with her colleagues in declining to hear the case, Bongani Charles Calhoun v. United States, because the defendant’s attorney failed to object to the question during trial and did not pursue certain procedural arguments in his appeal to the circuit court, she wrote.

Normally, when the Supreme Court declines to hear a case, the clerk simply issues a one-line order saying certiorari is denied, but Sotomayor wrote in her opinion that she wanted “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.”

Bongani Charles Calhoun was convicted of a drug offense, and his trial focused on whether he knew a friend’s and that friend’s associates’ intent when he accompanied them as they attempted to buy cocaine from undercover agents. Calhoun denied having knowledge of the impending drug deal. During intense questioning at trial, the prosecutor asked Calhoun, who is African-American, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, ‘This is a drug deal?’”

Sotomayor, whose opinion was joined by Justice Stephen Breyer, writes that though Calhoun’s conviction stands, the question “never should have been posed” and is “an affront to the Constitution.”

“By suggesting that race should play a role in establish­ing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation,” Sotomayor wrote. “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century.”

Sotomayor, the first Latina Supreme Court justice, also scolds the government for failing to condemn the prosecutor’s actions at the appellate level, doing so only when prompted by the court.